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Precedent

Judicial precedent is the process whereby the past decisions of judges create law for future judges to follow.

Judicial precedent is sometimes referred to as case law. It is an important source of law. The doctrine of judicial precedent centres around the Latin term 'stare decisis et non quieta movere' which translates as 'stand by what has been decided and do not unsettle the established.' Another key feature of judicial precedent is the Latin term'ratio decidendi'andmeans that part of the judgement which is delivered at the end of a case which explains the reasons for the decision.

The 'ratio decidendi' should be contrasted with parts of the judgement which are known as 'obiter dicta' which simply means 'other things said'. Such remarks made by the judge, although sometimes helpful and influential, are not binding. Obiter statements are a form of persuasive precedent in that whilst they are not binding they may be taken into account and a judge may be persuaded to follow the obiter remarks or reasoning.

Not every part of the judgement is binding - other parts of the judgement which are not binding may consist of a brief summary or outline of the facts of the case and a review of the legal arguments put to the judge/s by the advocates in the case which usually precedes the decision itself and the legal reasoning behind the decision.

A fundamental principle upon which the doctrine of judicial precedent rests, is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis, meaning stand by what has been decided, forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated alike for the sake of certainty and consistency which, it is argued, leads to fairness. The effect of this is that, ordinarily, the legal reasoning will follow past decisions made on a point of law in an earlier case.

Distinguishing is a way of avoiding having to follow a previous decision because the material facts are different or because the statement of law in the previous case can not be adequately applied to the new case because it is too narrow.

If cases were not properly recorded the doctrine of judicial precedent would fail. The doctrine is, by definition, dependent upon being able to refer back to past decisions and if those decisions are not reported and therefore not recorded the concept would be unworkable.

Prior to 1865 there were various systems of law reporting but since that date the Incorporated Council of Law Reporting has been responsible for producing official accounts of decisions.

Original precedent is an interesting concept. It arises if the point of law in a case has never been considered before. There are no past cases upon which the judge can base his decision so the normal doctrine of judicial precedent cannot apply as there is, quite literally, no precedent to follow. Using the Source - persuasive precedent occurs 'where a court does not have to follow another courts’ decision but can choose to follow it if they wish'. There are a number of sources of persuasive precedent and these are obiter dicta statements, decisions of the Privy council, dissenting judgements, decisions of courts in other countries and decisions made by courts lower in the hierarchy.